Citation Nr: 1023826
Decision Date: 06/25/10 Archive Date: 07/01/10
DOCKET NO. 05-09 535 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Kathy Diener, Associate Counsel
INTRODUCTION
The Veteran had active service from March 1969 to October
1970.
This matter comes before the Board of Veteran's Appeals
(Board) on appeal from a February 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California.
The Veteran presented testimony before the undersigned
Veterans Law Judge (VLJ) in a videoconference hearing in May
2008. A transcript of that hearing is associated with the
claims file.
In June 2008, the Board remanded the case for further
development. In a decision dated in August 2009, the Board
denied the Veteran's claim for service connection for an
acquired psychiatric disorder, and the Veteran appealed. By
a March 2010 Order, the Court of Appeals for Veterans Claims
granted the parties' Joint Motion for Remand, vacated the
Board's August 2009 decision, and remanded the matter for
compliance with the instructions in the Joint Motion.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
A review of the record discloses the need for further
development. The Veteran is seeking service connection for
an acquired psychiatric disorder, claimed as schizophrenia,
which he contends began in service.
Service treatment records reflect that the Veteran had a
stuttering disorder that was noted at induction. The Veteran
was on trial for absence without leave (AWOL) in July 1970,
when the trial judge suspended the proceedings and ordered an
evaluation of the Veteran's speech disorder. During the
evaluation, it was noted that the Veteran had "near
inability to verbalize," and his performance on the
nonverbal parts of the test were also far below average. The
Veteran then underwent a psychiatric evaluation in relation
to his speech disorder (which the examiner noted had existed
since early childhood.) The examiner found no evidence of
psychotic thinking, delusions, or autistic processes. He
stated that the Veteran was "highly anxious," but he was
unable to determine whether the speech disorder was a
consequence of the anxiety or merely associated with it. The
examiner felt that the speech disorder represented a learned
and conditioned defect; nonetheless, he recommended that the
Veteran undergo further mental health and speech evaluations.
There is no record of such evaluations in the service
treatment records. No psychiatric abnormalities were
detected during the Veteran's separation physical examination
in August 1970. During the separation physical, the Veteran
reported that he had had difficulty communicating with
teachers and other students in school because of his speech
disorder.
VA treatment records dated from February 1991 to the present
reflect that the Veteran received inpatient treatment for
substance abuse in 1991. A speech disorder was diagnosed in
August 1994, and he received speech therapy for stuttering
through 1995. A treatment record dated in February 1995
notes that the Veteran had depressive disorder and was
suspected to have schizotypal personality. Schizophrenia was
diagnosed in June 1998, and chronic paranoid schizophrenia
was confirmed in October 1999. In October 2000, anxiety
disorder was diagnosed, as well as alcohol abuse and cocaine
dependence, in remission. Since May 2001, VA psychiatric
treatment records have consistently noted a diagnosis of
schizophrenia.
Pursuant to the Board's remand instructions, records from the
Social Security Administration (SSA) were obtained and
associated with the claims file. These records reflect that
the Veteran underwent two psychiatric evaluations by the
California Department of Social Services in 1997 and 1998.
He was diagnosed with major depressive disorder, dysthymic
disorder, and anxiety disorder; however, he had no auditory
or visual hallucinations, delusions, thought insertions, or
thought broadcasting. During a July 1997 internal medicine
examination, he was found to have severe stuttering which
made communication very difficult, as well as involuntary
movements of the upper and lower extremities and twitching
movements of the face and eyes. In April 1998, a
neurological evaluation revealed no neurological
abnormalities except stuttering. The Veteran was examined in
May 2001, at which time he reported numerous auditory and
visual hallucinations. The examiner diagnosed schizophrenia,
undifferentiated type.
In a January 1999 SSA disability determination report, the
Veteran was denied disability benefits because he was not
disabled. The administrative judge found specifically that
the Veteran did not have any "severe mental impairment."
However, in August 2001, it was determined that the Veteran
was disabled due to schizophrenia, and the date of onset was
identified as March 1999.
Pursuant to the Board's remand instructions, the Veteran was
afforded a VA psychiatric evaluation in January 2009, in
which he reported that all of his symptoms had begun in 1995.
Upon reviewing the claims file, the examiner stated that
symptoms of mood disorder began in 1995, and there is no
evidence of psychotic features indicating schizophrenia prior
to 1996. The examiner diagnosed major depressive disorder,
recurrent moderate, and schizophrenia, paranoid type.
Although the examiner noted that the Veteran had heightened
anxiety, he did not diagnose an anxiety disorder. Based on
the onset of symptoms as shown by the medical evidence of
record, the examiner opined that these conditions did not
begin in service and were not likely caused or exacerbated by
his service. He stated that the Veteran's speech disorder,
which began at age 6, was associated with and likely
exacerbated by anxiety in service, but it was not caused by
that anxiety.
The evidence suggests that the Veteran currently experiences
anxiety, which may be associated with his current diagnosis
of schizophrenia, or may constitute a separate disorder. The
record also indicates that he experienced severe anxiety in
service, which the Veteran asserts was an early manifestation
of his current psychiatric diagnoses. In addition, the
evidence suggests that the Veteran's pre-existing speech
disorder may have been aggravated during service, possibly as
a result of anxiety. These considerations were not addressed
during the January 2009 VA examination. A remand is
therefore required in order to afford the Veteran an adequate
examination of his claimed conditions.
Accordingly, the case is REMANDED for the following actions:
1. Schedule the Veteran for a VA
psychiatric examination to determine the
current nature and likely etiology of any
diagnosed psychiatric disorder. The
claims file must be made available to the
examiner for review in connection with
the examination. Based on the
examination and review of the record, the
examiner should indicate a diagnosis for
any current psychiatric disorder and
answer the following questions:
(a) For any psychiatric disorder
diagnosed, is it at least as likely as
not (a 50 percent or more likelihood)
that the disorder began during or was
caused by the Veteran's service? In
providing the requested opinion, the
examiner should address the anxiety the
Veteran was noted to exhibit in service
and indicate whether the anxiety was an
early manifestation of any currently
diagnosed psychiatric disorder.
(b) If the answer to (a) is no, does the
evidence clearly and unmistakably
demonstrate that the condition existed
prior to service? If so, does the
evidence clearly and unmistakably show
that the condition was not aggravated by
service?
(c) Was the Veteran's pre-existing
speech disorder permanently aggravated
beyond the natural progression of the
condition during service or because of
any incident of service, to include the
anxiety he exhibited in July 1970?
The examiner is informed that aggravation
is defined for legal purposes as a
chronic worsening of the underlying
condition versus a temporary flare-up of
symptoms, beyond its natural progression.
If aggravation is present, the physician
should indicate, to the extent possible,
the approximate level of severity of the
speech disorder before the onset of the
aggravation.
A rationale for each opinion should be
set forth in the report provided. If the
requested opinions cannot be provided
without resort to speculation, the
examiner should so state and explain why
an opinion cannot be provided without
resort to speculation.
2. Review the record and complete any
further development, if necessary.
Thereafter, readjudicate the issue on
appeal. If the claim remains denied, the
RO should issue a supplemental statement
of the case and afford the Veteran and
his representative an opportunity to
respond. Thereafter, the case should be
returned to the Board for appellate
review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See 38 U.S.C.A. §§
5109B, 7112 (West Supp. 2009).
____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals